Furnace v. Giurbino et al

Filing 81

ORDER DENYING Plainitiff's 75 Motion to Amend the Complaint WITHOUT PREJUDICE, signed by Magistrate Judge Dennis L. Beck on 7/22/2013. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD FURNACE,

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Plaintiff,

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v.
GEORGE GIURBINO, et al.,

Case No. 1:11-cv-00012-LJO-DLB PC
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND WITHOUT
PREJUDICE
(Document 75)

Defendants.

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Plaintiff Edward Furnace (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action

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by filing his complaint on December 17, 2010, in the Sacramento Division of the Eastern District of

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California. The action was transferred to this Court on January 4, 2011. This action proceeds on

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Plaintiff’s First Amended Complaint, filed August 12, 2011, against (1) Defendant Lopez in his

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individual capacity for damages and in his official capacity for injunctive relief for denial of

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necessary religious items in violation of the First Amendment; and (2) Defendants in their official

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capacity for prospective injunctive relief for violation of the RLUIPA.

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On June 20, 2013, Plaintiff filed a Motion for Leave to File a Second Amended Complaint.
Defendants did not file an opposition.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a
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party may amend only by leave of the court or by written consent of the adverse party, and leave

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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive

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pleading has been served. Therefore, plaintiff may not file a second amended complaint without

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leave of court.

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient

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to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d

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708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).

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Plaintiff’s motion does not set forth the reasons for his request, nor does he address any of

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the factors used in the Rule 15(a) analysis. Instead, he simply states that he would like to file an

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amended complaint to “clear up defects in the prior pleadings.” Mtn. 2. In reviewing the lodged

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proposed Second Amended Complaint, it appears that Plaintiff wants to add claims of conspiracy,

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fraud, misappropriation of funds and cruel and unusual punishment under the Eighth Amendment.

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Plaintiff’s failure to discuss the factors above makes it impossible for the Court to analyze his
motion. Accordingly, the motion is DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated:

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/s/ Dennis L. Beck

July 22, 2013

D C_Si gnat ue EN :
EA
r- D

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UNITED STATES MAGISTRATE JUDGE
3b142a

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